Question 1

You have booked a holiday home through Accommodation Noosa Pty Ltd twelve months in advance.However,when you arrive at the Accommodation Noosa office to pick up the key,you are told that there has been an unfortunate double booking error,and the holiday home you had booked is no longer available.Accommodation Noosa offers you an alternative holiday home,but it is not as appealing as your original choice.Can you use s 18 of the Australian Consumer Law to bring an action against Accommodation Noosa?

Accepted Answer

Under Section 18 of the Australian Consumer Law (ACL), which is part of the Competition and Consumer Act 2010, a person must not engage in conduct that is misleading or deceptive or is likely to mislead or deceive. This provision is designed to protect consumers from conduct that distorts their decision-making process or leads them to a conclusion that they would not have otherwise reached had they been provided with accurate information.

In the scenario described, where you have booked a holiday home through Accommodation Noosa Pty Ltd twelve months in advance and upon arrival are informed of a double booking error resulting in your booked accommodation being unavailable, there may be grounds to bring an action under Section 18 of the ACL.

To determine whether Accommodation Noosa has engaged in misleading or deceptive conduct, the following factors would be considered:

1. **Representation**: Was there a representation, either explicit or implied, that the holiday home would be available to you upon your arrival?

2. **Reliance**: Did you rely on this representation when making the booking and planning your holiday?

3. **Error**: Was the double booking error due to an oversight or system failure that could have been prevented with due diligence?

4. **Remedy**: Is the alternative holiday home offered by Accommodation Noosa of a significantly lower standard or value, and does it fail to meet the terms of your original agreement?

If it can be established that Accommodation Noosa's conduct led you to believe that the holiday home would be available and this belief was a significant factor in your decision to book with them, then their failure to provide the booked accommodation could be seen as misleading or deceptive conduct.

Furthermore, if the alternative accommodation is not comparable to what was originally booked, this could add weight to your claim that you have been misled, as the substitute does not meet the expectations set by the original booking.

Before taking legal action, it is advisable to attempt to resolve the issue directly with Accommodation Noosa. You may request compensation, such as a discount or a refund, or insist on alternative accommodation that is of equal or greater value to your original booking. If a satisfactory resolution cannot be reached, you may consider lodging a complaint with the relevant consumer protection agency in your state or territory, or seeking legal advice on pursuing a claim under Section 18 of the ACL.

It is important to note that each case is unique, and the outcome would depend on the specific facts and evidence available. Legal advice should be sought to assess the merits of any potential claim under the Australian Consumer Law.

Question 2

Which of the following is NOT one of the guidelines for determining if conduct is misleading and deceptive within the meaning of s 18 of the Australian Consumer Law?

Accepted Answer

The guideline of establishing that at least half of the relevant section of the public would have been misled or deceived by the conduct of the defendant is not one of the guidelines for determining if conduct is misleading and deceptive within the meaning of s 18 of the Australian Consumer Law. The other options (A, C, and D) are all valid guidelines.

Question 3

In relation to 'conduct' under s 18 of the ACL,Henjo Investments Pty Ltd & Ors v Collins Marrickville Pty Ltd (1988)79 ALR 83 is authority for the principal that:

Accepted Answer

Henjo Investments Pty Ltd & Ors v Collins Marrickville Pty Ltd established that silence can be considered as misleading and deceptive conduct if there is a duty to disclose relevant information. In this case, the seller did not disclose to the buyer that the tenant had breached the lease agreement.

Question 4

How does s18 of the Australian Consumer Law define 'conduct'?

Accepted Answer

Section 18 of the Australian Consumer Law defines conduct as "a person engages in conduct that is misleading or deceptive or is likely to mislead or deceive." This can encompass statements of opinion that are false or not reasonably held, statements that are literally true but create a false impression, broken promises, and false predictions. Therefore, option D, "All of the above," is the best choice.

Question 5

In order to establish misleading and deceptive conduct in breach of s 18 of the Australian Consumer Law,3 out of the 4 following elements must be satisfied.Which answer option is NOT a necessary element for establishing misleading and deceptive conduct?

Accepted Answer

While intention may be relevant in some cases, it is not a necessary element for establishing misleading and deceptive conduct under s 18 of the Australian Consumer Law. The other three elements (misleading or deceptive conduct, by a person, in trade or commerce) are required.

Question 6

What was the reason for the decision in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982)149 CLR 191?

Accepted Answer

The answer of What was the reason for the decision...

Question 7

In relation to 'conduct' under s 18 of the ACL,Accounting Systems 2000 v CCH Australia Ltd (1993)42 FCR 470 is authority for the principle that:

Accepted Answer

The answer of In relation to 'conduct' under s 18...

Question 8

The onus of proving that a transaction is a consumer sale is always on the consumer.

Accepted Answer

The onus of proving that a transaction is a consumer sale is on the seller. The seller must prove that the buyer acquired the goods or services for personal or household use, as defined by the law.

Question 9

Under the Australian Consumer Law definition,a 'consumer' is not:

Accepted Answer

The answer of Under the Australian Consumer Law definition,a 'consumer'...

Question 10

In relation to 'conduct' under s 18 of the ACL,Clark Equipment Australia Ltd v Covcat Pty Ltd (1987)71 ALR 367 is authority for the principle that:

Accepted Answer

Clark Equipment Australia Ltd v Covcat Pty Ltd established the principle that pre-contractual representations can constitute misleading and deceptive conduct under s 18 of the ACL. In this case, the defendant made misrepresentations to the plaintiff about the capabilities of a machine, leading the plaintiff to purchase the machine. The court held that these pre-contractual representations amounted to misleading and deceptive conduct.

Question 11

In which case did the court set out the guidelines for determining if conduct is misleading or deceptive within the meaning of s 18 of the Australian Consumer Law?

Accepted Answer

The case Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) is known for setting out the guidelines for determining if conduct is misleading or deceptive under s 18 of the Australian Consumer Law.

Question 12

Allegations of a breach of a specific unfair practices section of the Australian Consumer Law will often also involve a breach of the general prohibition in s 18 for misleading and deceptive conduct.

Accepted Answer

Section 18 of the Australian Consumer Law prohibits misleading and deceptive conduct, and a breach of a specific unfair practices section is likely to also involve such conduct.

Question 13

Conduct by a corporation or person in trade or commerce that is misleading or deceptive may also result in a finding of unconscionable conduct.

Accepted Answer

This statement is true. Conduct that is misleading or deceptive in trade or commerce can also be categorized as unconscionable conduct. This can result in legal action against a corporation or individual who engages in such practices.

Question 14

Why was the conduct found not to be misleading and deceptive in McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd [1980] ATPR 40-188?

Accepted Answer

The court found that the target audience of the conduct, which was the use of the word "McPUB" on McDonald's menu for their burger, would not likely be misled into thinking there was a connection between the two products. The court took into account that there were several differences between the products, and that the use of the word "McPUB" was simply intended to be a playful alteration of the name. Therefore, the conduct was not found to be misleading and deceptive.

Question 15

Why was the conduct found to be misleading and deceptive in Pacific Dunlop v Hogan (1989)23 FCR 553?

Accepted Answer

The conduct was found to be misleading and deceptive because it created the false impression that a commercial relationship existed between the parties. This implied that Hogan was authorized by Pacific Dunlop to sell the product, which was not the case.

Question 16

Which of the following is NOT covered by the Australian Consumer Law?

Accepted Answer

The Australian Consumer Law does not cover financial services, which are regulated separately under the Australian Securities and Investments Commission (ASIC) Act.

Question 17

Section 18 is not only available to consumers,but it can also be used by competitors or suppliers against other competitors.

Accepted Answer

Section 18 of the Clayton Act prohibits exclusive dealings, tying arrangements, and mergers or acquisitions that substantially lessen competition. This provision can be used not only by consumers but also by suppliers or competitors against other competitors who engage in anti-competitive practices.

Question 18

Explain the function of the Australian Consumer Law.

Accepted Answer

The answer of Explain the function of the Australian Consumer...

Question 19

Conduct that is misleading and deceptive under s 18 of the Australian Consumer Law can result in both civil and criminal penalties.

Accepted Answer

Section 18 of the Australian Consumer Law deals with conduct that is misleading or deceptive or is likely to mislead or deceive, and it primarily provides for civil remedies, not criminal penalties.

Question 20

The Australian Consumer Law in ss 20 to 22 provides remedies for:

Accepted Answer

The Australian Consumer Law in ss 20 to 22 provides remedies for unconscionable conduct in both the supply and acquisition of goods or services from a person in the course of trade or commerce, regardless of whether the person is a listed public company or not. Therefore, option D, which includes all three options, is the correct answer.

Quiz 17: General and Specific Consumer Protections Under the Acl